NLRB Has to Revisit Case of Cussing Car Salesman

(CN) – A used-car salesman who was ousted from a Yuma, Ariz., car lot may have lost the protection of federal labor laws when he called his boss a “crook” and some other, more obscene, words, the 9th Circuit ruled Monday. Nick Aguirre had worked at Plaza Auto Center for just two months when he lost his job after a series of questions about breaks and compensation led up to an expletive-filled outburst. Aguirre had even attempted to find out the dealership’s costs, believing that his commissions were unfair. When owner Tony Plaza called Aguirre into his office for a talk about the salesman’s attitude on Oct. 28, 2008, Aguirre began to yell, calling the boss “a ‘fucking mother fucking,’ a ‘fucking crook,’ and an ‘asshole,'” court records state. “Aguirre also told Plaza that he was stupid, nobody liked him, and everyone talked about him behind his back.” Plaza in turn fired the worker, though, “at the beginning of the meeting, Plaza had no intention of firing Aguirre,” according to the court’s summary. “Plaza began the meeting by telling Aguirre that he was ‘talking a lot of negative stuff’ that would negatively affect the sales force and he was asking too many questions. Aguirre responded that he had questions about vehicle costs, commissions, and minimum wage. Plaza told Aguirre that he had to follow the company’s policies and procedures, that car salespeople normally do not know the dealer’s cost of vehicles, and that he should not be complaining about pay. Plaza twice told Aguirre that if he did not trust the company, he need not work there. At that point, Aguirre lost his temper and in a raised voice started berating Plaza, calling him a ‘fucking mother fucking,’ a “fucking crook,” and an ‘asshole.’ “Aguirre also told Plaza that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, Aguirre stood up, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would regret it. Plaza then fired Aguirre.” Aguirre complained to the National Labor Relations Board, and an administrative law judge (ALJ) found that Plaza had violated federal labor laws by “inviting Aguirre to quit in response to his protected protests of working conditions.” But the judge also ruled that Aguirre’s outburst and personal attacks had effectively revoked the National Labor Relations Act’s protection. On review, however, the NLRB reversed, finding that “Aguirre’s conduct was not so severe as to cause him to lose his statutory protection,” the ruling states. On appeal to the 9th Circuit, a three-judge panel in San Francisco agreed that Plaza committed unfair labor practices by telling Aguirre he could quit if he disagreed with the car lot’s policies. But the NLRB’s take on what happened during the meeting to be “at odds with its own precedents,” according to the decision. “Implicit in the board’s analysis is the suggestion that an employee’s outburst does not factor into the loss of the act’s protection unless accompanied by physical conduct, or at least a threat that is physical in nature,” wrote U.S. District Judge Gordon Quist from the Western District of Michigan, sitting by designation on the three-judge panel. “We arrive at this interpretation because the board seemingly considered immaterial the ALJ’s finding that Aguirre personally denigrated Plaza with obscene and insulting language. Aguirre’s verbal attack – involving repeated insults and obscenities, all directed at Plaza, as the ALJ found – was not brief and was, in fact, insubordination. The rule the board seems to espouse is at odds with its own precedents, which recognize that an employee’s offensive and personally denigrating remarks alone can result in loss of protection.”